Initial Reactions on the Appointment of Robert Mueller As Special Counsel

FBI Director Robert Mueller leads a briefing for President Obama on the Boston Marathon bombings, April 2013 / Official White House Photo by Pete Souza

There’s a lot of reason to be cheered this evening by the decision of Deputy Attorney General Rod Rosenstein to name a special counsel to investigate L’Affaire Russe, and there’s even more reason to be cheered that the individual he selected is Robert Mueller. Earlier this evening, David Kris—who worked closely with him—described Mueller as “experienced, knowledgeable, capable. He is utterly incorruptible. He cannot be intimidated. At this stage in his career, he has nothing to prove, no reputation to burnish, no axe to grind. He is ramrod straight in his integrity.” The description is one from which few who have worked with Mueller will dissent.

He’s also got some other virtues for the particular task at hand that are worth spelling out. There are actually very few people in the country who have both significant prosecutorial experience and have run a major investigative force. One of them was Jim Comey. Another one is Robert Mueller, who used to run the Justice Department’s Criminal Division and was also a U.S. Attorney for the Northern District of California and an Assistant U.S. Attorney in the District of Massachusetts, where he prosecuted fraud, corruption, and terrorism cases. That was all before he ran the FBI for 12 years.

Right now, the country is missing an FBI Director, and it’s also missing unambiguously independent leadership on the prosecutorial side for this investigation. There aren’t very many who can approach Mueller’s ability plausibly to stand in for both of those deficiencies.

It’s worth examining whether there are any issues which might arise with respect to Mueller’s appointment and the fact that his former law firm, WilmerHale—from which he has now severed ties—has clients involved in the broader Trump-Russia affair: Paul Manafort, Jared Kushner, and Ivanka Trump. Robert Novick, co-managing partner at WilmerHale, informed Lawfare that Mueller “had nothing to do with these representations” and was not party to confidential information on the relevant matters.

Under these circumstances, the matter is almost certainly not an obstacle. Federal ethics regulations prohibit DOJ employees from participating in matters where “[a]n organization which an employee … has served … within the past year” “represents a party.” But even if either the Trumps or Manafort is considered a “party,” the rule can be waived by the Department if it is in the public interest. The ABA Model Rules of Professional Conduct would obstruct the representation only if Mueller personally and substantially participated in the matters at WilmerHale or acquired confidential information about them—which Novick tells us Mueller did not. The District of Columbia Rules “require[] that a government lawyer contemplating representation in a matter directly adverse to the interests of a former client determine whether the matter is the same as or substantially related to representation that the lawyer previously provided to the former client.”

So we consider the conflicts questions satisfied.

It is also worth noting that the office into which Mueller steps is different from the office occupied by independent counsels like Kenneth Starr and Lawrence Walsh. Per regulations issued by the Attorney General in 1999, when the independent counsel statute lapsed, the Attorney General may appoint a special counsel from outside the Justice Department to conduct investigations of certain sensitive matters, such as those that present a conflict of interest for Department personnel or in “other extraordinary circumstances,” where in light of these circumstances “it would be in the public interest...” Note that these special counsels are not just appointed by the Attorney General—or, in this case, the Deputy Attorney General who is acting in place of the recused Jeff Sessions—at his discretion but that they also, to some extent, answer to him. For example, the Attorney General can request “an explanation for any investigative or prosecutorial step” and may, with notice to Congress, countermand him. So unlike the independent counsels of old, Mueller will not be entirely separate from the Justice Department—for better or for worse.

In Mueller’s case, that distinction is less of a concern than it would be for many other appointees. Mueller is of sufficient stature that any effort to rein him in would likely provoke an immediate scandal if he were to go public, and that means his threat of resignation is a very potent weapon. He also has the kind of experience that ensures he will not be shy when it comes to construing the limits of his jurisdiction. He arguably does not necessarily need the kind of statutory guarantees of independence that the old statute offered; in some respects Mueller is kind of his own guarantee.

What he does need is a mandate that gives him the authority to examine what he wants. Rosenstein’s order says that:

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. (d) Sections 600.4 through 600. l 0 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

On the one hand, by its very terms, the order seems to incorporate the parameters of the investigation as described by Comey in his testimony before the House Intelligence committee on March 20th. Comey stated:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

On the other hand, reading the specific provisions alone, there’s potentially an apparent, albeit subtle, narrowing of the investigation Comey announced. Comey, after all, announced three components of the investigation: (1) the Russian interference in the election, and subsidiary to that, (2) links between the Trump campaign and the Russians, and (3) coordination between the Trump campaign and the Russian efforts. The order Rosenstein issued today could be read to leave out the Russian interference itself.

It is unclear at this stage how significant that kind of omission might be, or even what it means. It could mean that the Justice Department is keeping the larger Russian hacking investigation and putting under Mueller only the parts that involve the Trump campaign. But again, it’s possible that the operative language is the grant to Mueller of the authority “to conduct the investigation confirmed by . . . Comey”—that is, the whole thing—and that the first jurisdictional point in Rosenstein’s order is merely an attempt to summarize what Comey said.

The most important element of the grant is point ii: “any matters that arose or may arise directly from the investigation.” This should allow Mueller to take on whatever matters come up and expand his jurisdiction within reason to include new developments in what appears in from the press to be a sprawling morasse of matters. It is certainly capacious enough to include any allegations of obstruction of the investigation that Mueller might want to look into.

Point iii, regarding § 600.4(a), is also significant in that it reinforces the outer limits on special counsel’s authority. Under § 600.6, the special counsel has "full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney" but only "within the scope of his or her jurisdiction." As for the terms of that jurisdiction, §600.4(a) defines the “Original Jurisdiction” which is established by the Attorney General. If in the course of investigation, the special counsel counsel determines he needs additional jurisdiction, or that non-criminal measures are appropriate, such as administrative remedies or civil sanctions, § 600.4(b) says he must go back and consult with the Attorney General.

How the grant of authority in the Rosenstein order compares with past regulatory special prosecutors is a tricky question. This marks only the second time the Attorney General has appointed special counsel under this particular regulation. The first time was just months after the regulations went into effect, when Attorney General Janet Reno appointed John Danforth to investigate the FBI’s role in the raid on the Branch Davidian compound in Waco, Texas. Past attorneys general have used different authorities to appoint other special counsels—like Nora Dannehy, appointed in 2008 to investigate the firing of U.S. Attorneys, Patrick Fitzgerald, tasked with leading the investigation into the Valerie Plame affair, and John Durham, who investigated the alleged abuse of suspected terrorists by CIA interrogators. In all of those cases, the appointed special counsels had a considerable measure of independence, but that independence was circumscribed by the limits of jurisdiction, and the Attorney General’s ultimate supervisory authority. The one real exception here is the Fitzgerald appointment, where then-Deputy Attorney General James Comey delegated to him "all of the authority of the Attorney General" with respect to the Plame investigation, including the power to pursue administrative remedies and civil sanctions, and specified that his "position and authorities" are not limited by the restrictions set out in § 600.4(a).

The bottom line is that, on its face, the scope of Mueller’s jurisdiction seems reasonable.

So should we all just be satisfied the Trump-Russia affair is in good hands and wait for Bob Mueller to let us know whether there’s a problem? Hardly.

It is important to recognize that the matter of a special counsel is largely distinct from the questions related to congressional investigations, and having a special prosecutor does not resolve the question of whether we need a select committee or some kind of independent commission, in addition to the investigation already ongoing in Congress. As Ben and Susan wrote previously:

While the subject matter overlaps, the executive branch and the legislative branch are conducting different investigations for different purposes. Namely, the executive branch is conducting a set of foreign intelligence and counterintelligence investigations that may (or may not) have criminal investigative elements. Its goal is not to answer public questions about what happened or what may still be happening.

By contrast, Congress is charged with ascertaining information related to legislative purposes—including the imposition of sanctions in response to the activity of a hostile foreign power, the discharging of its oversight function with regard to fraud, abuse, or corruption in the executive branch, and legislative measures that might be necessary to protect the American electoral system. It also has a duty to publicly address major questions the political system is struggling with now in a fashion the public can absorb and process: What is the President’s relationship with Russia? And is there reason to be concerned about it?

While Mueller’s appointment will certainly alleviate some of the external political pressure on Congress to establish more credible and independent inquiries, it doesn’t actually address the issues stymying the investigating committees at all. Perhaps most importantly, the final report of the Special Counsel—referred to in the regulations as “Closing Documentation”—is treated as a confidential document and not made publicly available. The members of Congress have a duty to their constituents to address these matters as publically as possible.

This is all to say, with apologies to Anne-Marie Slaughter, that we can have it all–and that we should demand to. Today we got a big piece of the puzzle: Robert Muller as a special counsel. We already have the Senate and House intelligence committee investigations, one of which is credible and the other of which may still redeem itself. The remaining piece on the congressional side is an additional appropriately-resourced and more independent investigation. Susan and Ben explained here their reasons for preferring the select committee model. There is also still a missing piece on the executive branch side: the appointment of a new, non-political FBI Director of unimpeachable reputation and experience.

As of tonight, Mueller’s already taken (plus the law says he can't do the job again). The President just fired Comey. The remaining list of people up to this particular task isn't very long. We're happy to offer suggestions.